Producing Video Evidence Prior to Applicant's Deposition

Video evidence is admissible in workers' compensation proceedings. Generally, it's obtained by a defendant after an applicant reports an injury and the defendant questions the applicant's credibility. This type of evidence can be called surveillance evidence or sub rosa evidence, and the parties often dispute when it must be produced.

The issue was addressed long ago in Downing v. City of Hayward (1988) 16 CWCR 76 (panel decision). In that case, the applicant's attorney objected to allowing his client's deposition because the defendant had failed to disclose whether or not it possessed surveillance films of him, and if it did, because it had failed to provide them to the attorney. Downing held that a defendant not only is not obligated to show any surveillance films prior to an applicant's deposition, but that it's also not obligated to disclose whether or not such films in fact exist. The WCAB explained:

At his deposition, the least that an applicant should be required to do is to state the truth as to his physical abilities, and his duty to state the truth should not depend on whether the defendant has nor [sic] has not observed and made a record of his daily activities. Moreover, the ascertainment of the truth is also best served by allowing a defendant to depose an applicant before he has seen, or has been informed of the existence of, any surveillance films. When an applicant has been informed that such films have not been made, he may in his deposition testimony overstate or exaggerate his level of disability. However, when an applicant is uncertain as to whether surveillance films exist, any tendency to exaggerate his disability will be minimized or, if his disability is overstated, the surveillance films may later be used to discredit that deposition testimony.

Defendants have relied on this case for more than 35 years to assert that they are not required to disclose video evidence to an applicant before taking his or her deposition. Recently, in Gonzales v. ADP TotalSource Group, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 415, the WCAB limited the holding in Downing. In Gonzales, the applicant alleged that she was injured during an altercation with a co-worker. After the defendant denied the claim, the applicant requested production of video footage of the incident, along with other related materials. The parties proceeded to a hearing on whether the defendant was required to produce the video evidence prior to the applicant's deposition. The WCAB reversed a WCJ's decision that had relied on Downing to find that the films were not required to be disclosed prior to taking the applicant's deposition.

The WCAB explained that the entire purpose of post-injury surveillance evidence is to challenge the applicant's credibility by demonstrating that her or his actual activities are inconsistent with the level of injury alleged. For that reason, panel decisions, such as Downing, have held that such footage need not be disclosed prior to the deposition.

The WCAB, however, noted that the case involved video of the incident leading to the alleged injury itself. The board explained:

Although defendant would no doubt prefer not to disclose the video to applicant until after conducting her deposition in the hopes that she testifies to something inconsistent with what is pictured, such an argument can be equally mustered with regard to virtually any discoverable evidence. Were we to broaden the holding of Downing to include the instant video footage, we see no real limiting principle that would prevent a defendant from withholding virtually any evidence prior to conducting an applicant's deposition.

The WCAB also noted that the defendant had shown the footage to the applicant once after the accident. The defendant's refusal to provide the footage, it believed, was as much aimed at testing the applicant's recall of the footage itself as it was testing her recall of the incident. The WCAB believed it would be unfair to both the applicant and her counsel to refuse disclosure, as the attorney would be the only person in the deposition room not to have seen the video.

So Gonzales doesn't reverse Downing. Defendants still can argue that post-injury surveillance evidence need not be disclosed prior to taking an applicant's deposition. But if requested by the applicant's attorney, defendants should disclose video evidence of the injury itself.

If a defendant refuses to disclose such evidence, the WCAB may decline to allow the applicant's deposition to proceed. It's also possible that the WCAB could find timely requested films of an injury itself to be inadmissible at trial if a defendant refuses to disclose them, but that would need to be further clarified by the courts.

For further discussion of this topic, see "Sullivan on Comp" Section 14.13 Surveillance.